CM Advocates LLP v Cole (Sued as the Administrator of the Estate of Josephine Eleanor Moikobu) (Miscellaneous Application E170 of 2021) [2024] KEELC 376 (KLR)
The bottom line
#A Kenyan client who filed a Notice of Appeal cannot also ask the court to review the same decision, so the High Court dismissed his review application with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether review can be entertained where a Notice of Appeal is in existence
A Notice of Appeal constitutes an appeal for all intents and purposes; a party cannot pursue review and appeal over the same decision simultaneously, rendering the review application incompetent and stillborn.
The Applicant filed a Notice of Appeal against the ruling of 31st July 2023 which was neither withdrawn nor struck out, and did not contest its continued existence. Relying on Otieno Ragot & Co Advocates v National Bank Ltd, the court held that the election between appeal and review must be honoured; mounting review while keeping the appeal option open is gambling with the law and judicial process, and divests the court of jurisdiction to grant review.
Whether review is envisaged under the Advocates Remuneration Order
The Advocates Remuneration Order is a complete code which does not provide for review; an aggrieved party must file a reference under Rule 11, and the Civil Procedure Act and Rules cannot be invoked in taxation proceedings.
The court relied on Machira & Company Advocates v Arthur K Magugu and Carolyn K. Mumbo & Co Advocates v Mulu Mbuvi to hold that Rule 11 of the Advocates Remuneration Order delineates the exclusive mechanism for challenging a certificate of taxation - a reference to the judge, with an appeal to the Court of Appeal with leave. Section 80 and Order 45 cannot short-circuit that procedure, making the application misconceived and legally untenable.
Whether the application is a disguised appeal against the court's own decision and whether new email evidence justified review
The application invited the court to sit on appeal on its own decision, a legal anathema; the email correspondence was in the Applicant's custody and was not new evidence discoverable only with due diligence.
The court had already made a conscious finding, after interrogating documents, that no retainer agreement existed, and no error apparent on the face of the record was shown. The Applicant did not demonstrate why the emails, which were in his own custody and possession, could not have been tendered at the onset. Citing Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya and Stephen Gathua Kimani v Nancy Wanjira Waruingi, the court held the Applicant failed to discharge the burden of proving the statutory threshold under Order 45 Rule 1.
Legal principles established
#- Once a Notice of Appeal exists, a party cannot simultaneously pursue an application for review of the same decision; doing so amounts to gambling with the law and judicial process.
- The Advocates Remuneration Order is a complete code which does not admit review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules in taxation matters.
- A party seeking review on the basis of new and important evidence must demonstrate that the evidence could not, with due diligence, have been produced earlier.
Court orders
#- 1.The Notice of Motion application dated 9th November 2023 be and is hereby dismissed with costs
- 2.The costs attendant to the application be certified in the sum of Kes. 30,000/- only, to be borne by the Applicant
- Jurisdiction invoked
- Sections 1A, 7B, 3A and 63(e) of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CM Advocates LLP v Cole (Sued as the Administrator of the Estate of Josephine Eleanor Moikobu) (Miscellaneous Application E170 of 2021) [2024] KEELC 376 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/376/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.